Bush Gives Recess Appointment to Pickering

WASHINGTON – President Bush used his executive authority Friday to bypass Senate Democrats and install District Judge Charles Pickering (search) on the 5th Circuit Court of Appeals.

The recess appointment, confirmed by Fox News on Friday, allows Pickering to skip confirmation by the deadlocked Senate and hold the seat until the next Congress takes office, which will be in January 2005.

"Today I was proud to exercise my constitutional authority to appoint Judge Charles W. Pickering to serve on the United States Court of Appeals for the 5th Circuit," Bush said in a statement late Friday. "Judge Pickering has served with distinction as a United States District Judge since he was unanimously confirmed by the Senate in 1990. He is highly qualified to serve on the Court of Appeals and has widespread bipartisan support from those who know him best."

"I'm grateful to the president for his continued confidence and support," Pickering said from his home in Mississippi. "I look forward to serving on the 5th Circuit."

The 5th Circuit Court, based in New Orleans, handles cases from Mississippi, Texas and Louisiana, and is known for pioneering rulings on desegregation and voting rights appeals.

Democratic senators had filibustered Pickering's nomination, accusing him of racism, and saying he supported segregation while a young man and held anti-voting rights and anti-abortion positions while a state lawmaker.

They also were angered by his decision to reduce the sentence of a man who had been convicted of helping burn a cross on the front lawn of an interracial couple in Mississippi and accused him of bias in an employment discrimination case he adjudicated.

"A man who defended cross-burning does not deserve elevation to the bench," said Sen. Charles Schumer D-N.Y., who led the opposition to Pickering in the Senate Judiciary Committee.

"As the New Year began, many of us had hoped the president would adopt a more bipartisan approach in his selection of judges. Instead, this recess appointment is a finger in the eye to all those seeking fairness and bipartisanship in the judicial nominations process," Schumer said in a written statement.

"It is quite unfortunate that the president has chosen to seat Judge Pickering only days before the nation celebrates the life and legacy of Dr. Martin Luther King Jr.," added Rep. Bennie Thompson, a Mississippi Democrat and member of the Congressional Black Caucus.

But Pickering's supporters, including the former Democratic governor of the state, Ronnie Musgrove, the head of Mississippi's legislative black caucus and James Charles Evers, brother of slain civil rights leader Medgar Evers (search), say the judge is well known for being scrupulously fair on the bench.

They add that as a state prosecutor in 1968, Pickering testified against a grand wizard of the Ku Klux Klan (search), a decision that cost him his re-election, and as chairman of the state GOP, hired the first black political staffer.

"For 25 years, I have strongly advocated that African-Americans and whites should sit down and talk in a positive and constructive manner to try to promote better understanding. This I've done," Pickering said after a meeting with the Mississippi Black Caucus.

The American Life League (search), which opposes abortion rights, said it was pleased with the president's decision.

"Clearly the White House has realized that the militant, pro-abortion zealots in the Senate will neither listen to reason nor recognize the limit to their own power in this matter," said Joseph R. Giganti, ALL's director of media and government relations. "Back in October, we insisted that President Bush must take clear and bold steps. With today's appointment, he appears to have taken American Life League's message to heart.

Pickering is among several judicial nominees who have been hamstrung by the filibuster (search) process. Alabama Attorney General William Pryor, Texas judge Priscilla Owen and Hispanic lawyer Miguel Estrada (search), who has since withdrawn his nomination, all have been stopped from receiving a majority vote in the Senate as a result of the maneuver. Others, including California judges Carolyn Kuhl and Janice Rogers Brown, are expected to be blocked by Democrats as well.

Pickering was first nominated by Bush in May 2001. He was blocked from a Senate Judiciary Committee referral in March 2002 when Democrats held the majority. His nomination was returned to the panel in January 2003 after Republicans won back the Senate. Though he passed committee confirmation on a party-line vote last October, Democrats blocked a Senate floor vote.

"Judge Pickering is a federal judge. He was confirmed by the Senate to the judgeship he already holds. He's a fine upstanding man. He's been through two Senate confirmation hearings and one Senate floor vote," said Judge Andrew Napolitano, a Fox News judicial analyst.

Napolitano said the decision to appoint Pickering probably came from the president's political advisers who saw it as an opportunity to win points with conservative voters.

"This has Karl Rove (search) written all over it," Napolitano speculated.

However, the recess appointment is not a new tool to the president. Bush made a recess appointment to the U.S. Institute of Peace in August. In 2002, he also gave a recess appointment to Eugene Scalia to be Labor Department solicitor and Otto Reich as assistant secretary of state for Latin America, the top diplomatic post for the region.

President Clinton also used his executive power for recess appointments, giving Roger Gregory a seat on the 4th Circuit Court of Appeals in December 2000. He also used it for another controversial position.

"Democrats absolutely will be furious and when they get furious, they should look at President Cinton, who also did this, not with a federal judge but with Bill Lann Lee (search), assistant attorney general," said Napolitano. "Lee could not get confirmed by a Republican Senate to run the civil rights division of the Justice Department. President Clinton appointed him as a recess appointee, appointed him twice, he did it twice to bypass the Republican-controlled Senate and Mr. Lee ran the civil rights division of the Justice Department and the Republican Senate couldn't do anything about it."

Fox News' Wendell Goler and Sharon Kehnemui and The Associated Press contributed to this report.